Psychology 

Is it necessary to withhold overpaid wages? Excessively paid wages: actions of the employee and the employer. Procedure for returning overpaid wages to an employee if a counting error has occurred

Good afternoon Olesya!

All cases in which money can be withheld from wages are listed in Article 137 of the Labor Code of the Russian Federation:

Deductions from an employee's salary are made only in cases provided for by this Code and other federal laws.

Deductions from an employee’s salary to pay off his debt to the employer can be made:

to reimburse an unpaid advance issued to an employee on account of wages;

to repay an unspent and not returned timely advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;

to return amounts overpaid to an employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or downtime (part three of Article 157 of this Code);

upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide to deduct from the employee’s salary no later than one month from the end of the period established for the return of the advance, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of the withholding.

Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:

counting error;

if the body for consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or downtime (part three of Article 157 of this Code);

if the wages were overpaid to the employee in connection with his unlawful actions established by the court.

So, unfortunately, they can detain you in your case.

Withholding of overpaid wages

Is it possible to return overpaid wages to an employee? At first glance, the question seems absurd. There are many simple ways to settle wage settlements with an employee of an enterprise. However, the extent to which this simplicity will be legal will depend on many factors. Let's try to analyze them.
In accordance with Article 137 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), wages overpaid to an employee (including in the event of incorrect application of laws or other regulations) cannot be recovered from him, except for the following cases:
- when the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime;
- when wages were overpaid to the employee in connection with his unlawful actions established by the court;
- committing a counting error.
However, there is no legally established definition of the concept of “counting error”. Counting errors include only those that were made directly when performing arithmetic operations, that is, they are associated specifically with calculations. Technical errors, including those made through the fault of the employer, are not countable (decision of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17).
According to representatives of the Russian Ministry of Health and Social Development, counting errors include:
— a mechanical error when entering data into the accounting program (if, for example, the salary amount is entered in a larger amount than it should be, or a number is missing, or a number is entered incorrectly);
— an error caused by a failure in the program;
- an error that is associated with arithmetic operations when calculating wages (an incorrect result was obtained when adding the components of wages (salary, additional payments, bonuses), which were individually calculated correctly).
Uncountable errors include:
— incorrect application of legislation. For example, a paid vacation of a longer duration than provided for by law and (or) local regulations of the institution, as a result of which the amount of vacation payments turns out to be inflated;
— double payment of wages;
— incorrect application of the institution’s regulations.
Thus, the employer does not have the right to make deductions on his own initiative in the following cases:
- if the amounts accrued in favor of the employee are mistakenly paid to him twice;
- if the accrual of an excess amount is due to an error by the accountant: wages are calculated based on a higher salary (tariff rate) than that established for the employee in the employment contract; the bonus is accrued in a larger amount than indicated in the bonus order; bonus amounts were incorrectly taken into account in calculations of average earnings; the average earnings were incorrectly adjusted due to an increase in salaries (tariff rates) in the organization, etc.;
- if the accrual of an excessive amount of wages is due to errors in the Time Sheet (for example, days of temporary disability are reflected in the Timesheet as worked, etc.).
The employer has the right to issue an order (instruction) for the return of funds by the employee if the overpayment arose due to the need for compensation:
— unearned advance payment on wages;
— unspent and not returned on time advance payment issued in connection with a business trip;
- amounts overpaid due to a counting error.
Mandatory conditions for return by order of the manager are:
— the employee does not dispute the grounds and amounts of deductions (the employee has written consent);
- no more than a month has passed since the calculation of the excess payment amount or the established deadline for submitting an advance report on business trip expenses. After one month from the date of expiration of the established period, amounts overpaid to the employee, as well as amounts disputed by the employee, can be recovered only on the basis of a court decision.
Article 138 of the Labor Code of the Russian Federation establishes that the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws - 50% of wages due to the employee.
If payments are terminated (in the event of, for example, dismissal), the remaining debt is collected in court.
Thus, in the case where the overpayment occurred as a result of an uncountable error, the employee who was overpaid is not required to reimburse the amount of the overpayment to the institution. In this case, the amount of the overpayment must be reimbursed by the employee who made the mistake.
In order to find out the reasons for the error and the perpetrators, a specially appointed commission of the institution must draw up an act, which also indicates what error was made: counting or not. Further, if the guilty person returns the erroneously paid amounts, the incident will be over.
Otherwise, to deduct the overpayment from the salary, you should draw up (if the employee does not dispute the basis and amount of the overpayment):
— a notice indicating the period for withholding the overpayment (no more than one month from the date of expiration of the period established for the return of incorrectly calculated payments). In the document, the employee indicates his consent (disagreement) to the retention;
— an order to withhold overpayment (issued if the employee’s consent is received and the withholding period has not expired).
If the deadline for making a decision on withholding has expired or the employee refuses to voluntarily return the excess amounts received, the employer will have to recover the overpayment in court.
This is how the seemingly simple task of returning overpaid wages is not easily solved.

According to Article 137 of the Labor Code of the Russian Federation, wages are considered overpaid and must be returned by the employee in the following cases:

  • counting error;
  • proven by the labor dispute commission or court of the employee’s guilt in idle time or failure to comply with labor standards;
  • unlawful actions of an employee established by the court in order to receive unearned money.

Basic Rules

At the same time, according to Article 137 of the Labor Code of the Russian Federation, the employer issues order to withhold overpaid wages from an employee. If the amount is large, you will need to withhold for several months, since the company has the right to withhold no more than 20% of the accrued monthly salary.

An employee with this order must must be familiarized with signature and indicating the date of familiarization, with written confirmation of your consent to withhold the specified amount in the agreed monthly amounts (if the amount is large and it is not possible to withhold it for one month).

The second option is also possible - the employee writes himself application addressed to the head of the organization with a request to make a deduction overpaid wages (including interest).

What amounts overpaid to an employee can be withheld from his salary?

According to him, this could be more than 20% per month.

If a counting error is detected regarding a resigned employee, it is necessary to notify him about it by registered mail within a month from the date of discovery of the error. At the same time, reflect the request to independently return the excess amount received. It should also be warned that in case of refusal of a voluntary return, an appeal to the court will follow to forcefully collect the amount.

Going to court

In case of appeal to the district court, An application must be submitted with the following documents:

  • a copy of the employment contract with the defendant;
  • settlements for overpaid wages;
  • a report drawn up at the enterprise about the identified error in compliance with the statute of limitations;
  • a copy of the letter sent to the dismissed employee with notification of its dispatch.

At trial present the originals of all the above documents. During the trial, you will have to prove the fact of a calculation error or the employee’s guilt.

Overpaid wages that are not subject to return by the employee

It is prohibited to demand the return of funds specified in paragraph 3 of Article 1109 of the Civil Code of the Russian Federation. Also not subject to withholding overpaid wages in case of a counting error, if the corresponding order is not issued in a timely manner, with which the financially affected employee is familiarized with signature.

Technical errors do not apply to counting errors. And therefore, it is prohibited to withhold overpayments from an employee due to errors in the accounting program and other monetary documents, or incorrect application of laws and regulations.

In particular, Overpaid wages are not refundable:

  • payment for longer vacations;
  • payment of wages twice: both for oneself and as if for a namesake;
  • salary was paid incorrectly while on vacation;
  • the accountant accrued an unspecified allowance;
  • The premium was paid by mistake.

Approaching the issue that has arisen not from the side of legal acts, but simply from a human perspective: everyone knows what amount is due to them. An accountant is in charge of payroll, and he does not always have the opportunity to thoroughly check everyone before payment.

Withholding the amount of damage for overpaid wages from the guilty person

Based on Chapter 39 of the Labor Code of the Russian Federation, overpaid wages that are not subject to return by the employee, may be withheld by the employer from the accountant who made this mistake, whose guilt will be confirmed during the administrative investigation of this fact. The employer can also punish the chief accountant for insufficient control in this area of ​​accounting.

According to Article 248 of the Labor Code, upon the fact of damage caused by employees, a order (instructions) of the manager within the time limits established by law.

If the established period for issuing an order (instruction) has expired, and also if the amount recovered from an official is more than his monthly salary, recovery of damage is possible only with the consent of the guilty employee or through the court.

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Deduction of overpaid amounts from an employee's salary

It often happens that some amounts need to be withheld from an employee’s salary. This can happen for various reasons, for example, after the payment of wages, an error in the accruals is discovered or the employee becomes indebted due to damage to the enterprise. Please tell me what amounts are legally withheld from an employee’s salary under Russian law? How to properly withhold such amounts?

Deductions from wages can be different: at the request of the employee himself, according to executive documents, or by order of the employer. The latter, in turn, can occur in the case of:

(or) the employee causes material damage to the employer;

(or) payment of excess amounts to the employee within the framework of the employment relationship (hereinafter referred to as excess payments) (Article 137 of the Labor Code of the Russian Federation).

The procedure for withholding excess payments differs from the procedure for withholding amounts of damages. Let's see what constitutes excess payments, how they can be withheld from an employee, and what to do if this fails.

Types of excess payments

From the salary (Article 129 of the Labor Code of the Russian Federation), the employee is allowed to deduct:

  • vacation pay for unworked vacation days. Such debt may arise if an employee is dismissed before the end of the working year for which he has already received annual paid leave. You can deduct the employee's debt from the “severance” payments due to him. However, upon dismissal for some reasons, overpaid vacation pay cannot be withheld. For example, upon dismissal:
  • due to a reduction in staff or number of employees(Clause 2 of Article 81 of the Labor Code of the Russian Federation);
  • the employee’s refusal to transfer to another job, which is necessary for him according to a medical certificate, or the employer’s lack of appropriate work (Clause 8 of Article 77 of the Labor Code of the Russian Federation);
  • conscription(Clause 1 of Article 83 of the Labor Code of the Russian Federation);
  • reinstatement of the employee who previously performed this work(Clause 2 of Article 83 of the Labor Code of the Russian Federation);
  • unearned salary advances. This debt may arise, for example, when an employee was paid an advance payment of wages for that month at the beginning of the month, and the employee, without having worked it, went on vacation at his own expense or on sick leave before the end of the month;
  • unspent and unreturned imprest amounts, including those issued when sent on a business trip (Letter of Rostrud dated March 11, 2009 N 1144-TZ);
  • (Articles 155, 157 of the Labor Code of the Russian Federation). Such a debt will arise if you pay an employee for downtime or shortcomings on the basis that they occurred through your fault or for reasons beyond the control of both parties, and then it turns out that the employee was to blame. In this case, excess payments can be withheld only after you go to court and the court establishes the employee’s guilt in idle time or underperformance (Determination of the Moscow Regional Court dated December 15, 2011 N 33-25895);
  • amounts overpaid due to an accounting error. Moreover, this is not necessarily a salary. This also includes any amounts erroneously paid to an employee as part of or in connection with the employment relationship.

    Rostrud specialists also think the same.

From authoritative sources
Shklovets Ivan Ivanovich, Deputy Head of the Federal Service for Labor and Employment
“According to Article 137 of the Labor Code of the Russian Federation, the employer can withhold from the employee’s salary (in compliance with the procedure provided for in this article) the debt of this employee in the form of amounts overpaid to him due to accounting errors. The range of these amounts is not limited by this article. Therefore, any amount can be withheld from the salary payments and compensations overpaid to an employee due to a counting error, provided for by labor legislation, local regulations of the organization, collective or employment agreement, for example, benefits, financial assistance, payment for travel to the place of training, compensation for the use of the employee’s personal property, insurance coverage for accident insurance at work and occupational diseases, etc.
Deductions can only be made from wages. According to Art. 129 of the Labor Code of the Russian Federation, wages are remuneration for work (salary, official salary, tariff rate), as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and incentive allowances, bonuses and other incentive payments)."

There is no definition of a counting error in the Labor Code. The courts and Rostrud believe that only arithmetic errors in calculations are countable, that is, errors made as a result of incorrect application of the rules of mathematics (Letter of Rostrud dated October 1, 2012 N 1286-6-1). Therefore, courts, as a rule, do not recognize the following errors as counting:

  • the same amount was transferred twice due to a technical error (Determination of the RF Armed Forces dated January 20, 2012 N 59-B11-17);
  • the previously paid amount is not taken into account in the calculation (Determination of the Sverdlovsk Regional Court dated 02/16/2012 N 33-2365/2012; Cassation Determination of the Krasnodar Regional Court dated 02/14/2012 N 33-3340/12);
  • incorrect initial data were used in the calculation (for example, the wrong tariff or coefficient (Appeal ruling of the Oryol Regional Court dated June 20, 2012 N 33-1068), the wrong number of days (Cassation ruling of the Khabarovsk Regional Court dated 02/08/2012 N 33-847/2012) );
  • the salary in the program was doubled due to an error in the calculation algorithm (Appeal ruling of the Bryansk Regional Court dated 05/03/2012 N 33-1077/12);
  • when calculating, the norms of the organization’s local regulatory act were incorrectly applied (Appeal ruling of the Moscow City Court dated July 16, 2012 N 11-13827/12).

Courts reach other conclusions extremely rarely. For example, the Samara Regional Court indicated that counting errors include not only arithmetic errors, but also software failures (Determination of the Samara Regional Court dated January 18, 2012 N 33-302/2012).

And the Rostov Regional Court, reviewing a case in which “severance” payments were transferred to a dismissed employee by mistake, came to the conclusion that there was a counting error. Since the total amount of transfers exceeded the amount accrued in favor of the employee (Cassation ruling of the Rostov Regional Court dated September 12, 2011 N 33-12413).

We warn the manager
If the employee was overpaid as a result of an uncountable error and he refused to return these amounts voluntarily; it will be possible to recover them from him only in court as unjust enrichment (Article 1102, paragraph 3 of Article 1109 of the Civil Code of the Russian Federation).

The fact that a counting error was made when calculating payments in favor of the employee must be documented. For example, an accountant may write a memo addressed to the manager. Or let a specially created commission from among the company’s employees draw up a report on the discovery of a counting error.

Procedure for withholding excess payments

It varies depending on what amounts you overpaid the employee.

Deduction of vacation pay for unworked vacation days

Everything is simple here. The employee's consent is not required. You just need to calculate the overpaid vacation pay, issue an order (instruction) on withholding in any form, and familiarize the employee with it against signature (Articles 22, 130, 137 of the Labor Code of the Russian Federation).

And then withhold the debt from the “severance” payments. But the maximum that can be deducted is 20% of the amounts due to the employee (after withholding personal income tax, because the amount of tax is not due to the employee), if this is the only deduction (Article 138 of the Labor Code of the Russian Federation; Letter of the Ministry of Health and Social Development of Russia dated November 16, 2011 N 22-2-4852 ).
Also, do not forget to give the employee a pay slip indicating the type and amount of deduction (Article 136 of the Labor Code of the Russian Federation).

Withholding of other excess payments

They can be withheld from the employee’s salary only if the following conditions are met (Article 137 of the Labor Code of the Russian Federation).

Condition 1. The deadline established for the return of excess payments has expired

The employee must return any excess payments within the following terms:

  • unspent imprest amounts(Clause 4.4 of the Regulations, approved by the Bank of Russia on October 12, 2011 N 373-P) - on the next working day after the expiration of the period for which money was issued for the purchase of something, or on the day of going back to work after a business trip or after illness. And if the manager sets a deadline for making final payments according to approved advance reports, then - within this period;
  • payments for failure to comply with labor standards or idle time if the court establishes the employee’s guilt - on the day the court decision enters into force;
  • amounts overpaid due to an accounting error and unpaid salary advances— within the period established in the company’s local regulations. If it is not established, then the employee should be given (sent by mail) a notice in which he must indicate what debt has arisen, in what amount and within what period it must be repaid. You set the deadline at your discretion.

    Accounting error when calculating wages

    For example, you can issue a notification like this:

Condition 2. The employee’s consent to withholding has been obtained

The employer has the right to decide to withhold excess payments from the employee’s salary only if the employee does not dispute the grounds and amount of the withholding (Article 137 of the Labor Code of the Russian Federation).

From this we can conclude that it is enough to notify the employee of the upcoming deduction, assigning him a deadline for submitting objections. And if no objections are received from him within this period, then you can safely issue an order (instruction) to withhold.

But no. According to Rostrud, expressed in 2007, and the courts, this is not enough, and as a sign of the absence of objections on the part of the employee, it is necessary to obtain written consent from him to withhold (Letter of Rostrud dated 08/09/2007 N 3044-6-0; Cassation rulings of the Supreme Court of the Udmurt Republic dated August 22, 2011 N 33-2856, Supreme Court of the Republic of Tatarstan dated March 14, 2011 N 33-2570/2011). Rostrud specialists still adhere to the same opinion.

From authoritative sources
Shklovets I.I., Rostrud
“When deducting from an employee’s salary the amounts provided for in Article 137 of the Labor Code of the Russian Federation (with the exception of vacation pay for unworked vacation days), written consent should be obtained from the employee. This is also confirmed by judicial practice.”

An employee can formalize his consent to retention as follows.

Condition 3. A retention order was issued in a timely manner

An order (instruction) on withholding must be issued no later than a month from the date of expiration of the period for the return of excess payments. And you can directly withhold money from the employee’s salary later (Article 137 of the Labor Code of the Russian Federation; Cassation ruling of the Supreme Court of the Udmurt Republic dated October 3, 2011 N 33-3519/11), that is, when paying the employee’s salary. Moreover, the withholding, taking into account the restrictions on its amount, can last for several months.

In the order, indicate the basis and amount of the withholding. And familiarize the employee with it against signature (Article 22 of the Labor Code of the Russian Federation).

Condition 4. The amount of deductions for each payment does not exceed 20%

For each salary payment (that is, from amounts after deducting personal income tax), you can withhold no more than 20% (Article 138 of the Labor Code of the Russian Federation). Do not forget to indicate the basis and amount of the deduction on the pay slip issued to the employee (Article 136 of the Labor Code of the Russian Federation).

Well, if the employee agrees to have more than 20% withheld from him, then you can deduct from his salary any amount specified by him in his written statement. Indeed, in this case, the debt is repaid by the employee voluntarily, and not by order of the employer. Therefore, restrictions on the amount of deductions do not apply (Articles 130, 138 of the Labor Code of the Russian Federation). And there is no need to issue an order for such deduction; just one application from the employee is enough.

Condition 5. The order of deductions is observed

First of all, as you know, personal income tax must be withheld from your salary (Letter of the Ministry of Health and Social Development of Russia dated November 16, 2011 N 22-2-4852).

From the remaining amount, you withhold the employee’s debt under enforcement documents (writs of execution, court orders, etc.) (Article 138 of the Labor Code of the Russian Federation).

And only if you do not have executive documents in relation to the employee or the deductions for them amounted to less than 20% of the employee’s salary, you can deduct from it his debt to your company, of course, subject to the total amount of all deductions - no more than 20% of the salary.

Advice
Observe all of the above conditions when holding. Indeed, if any of them is not observed, the employee may, through the court, declare the retention illegal. And then the amounts withheld from him will be recovered from your organization back - in his favor (Determinations of the St. Petersburg City Court dated 03/07/2012 N 33-2718, dated 01/16/2012 N 33-238; Kamchatka Regional Court dated 01/22/2009 N 33- 38/2009; Cassation rulings of the Supreme Court of the Udmurt Republic dated October 19, 2009 N 33-2803; Kaliningrad Regional Court dated August 3, 2011 N 33-3553/2011).

If you are unable to withhold excess payments

For example, the employee did not agree to the deduction or upon his dismissal, 20% of the “severance” payments were not enough to pay off the entire debt. Then it is possible to recover wages and equivalent payments from the employee in court only in three cases (Article 137 of the Labor Code of the Russian Federation; clause 3 of Article 1109 of the Civil Code of the Russian Federation; Determination of the Primorsky Regional Court dated December 20, 2011 N 33-12174; Determination of the Supreme Court of the Russian Federation dated 05/28/2010 N 18-В10-16; Supreme Arbitration Court of the Russian Federation dated 10/08/2008 N 12227/08):

(or) a counting error was made;

(or) there were dishonest actions of the employee (for example, the employee unlawfully accrued his salary, abusing his official position (Determination of the Sverdlovsk Regional Court dated July 12, 2012 N 33-8492/2012), unlawfully received a salary after dismissal (Cassation determination of the Trans-Baikal Regional Court dated December 27. 2011 N 33-4545-2011), provided false information that affected the amount of wages, or fabricated documents for calculating wages in a larger amount (Appeal ruling of the Krasnodar Regional Court dated 08/28/2012 N 33-17581/2012));

(or) the court finds the employee guilty of failure to comply with labor standards or downtime (if excessive payments are collected from the employee for downtime and underperformance).

In the absence of such circumstances, the courts generally refuse employers to collect excess payments from employees (Decisions of the Supreme Court of the Komi Republic dated July 23, 2012 N 33-2899AP/2012, St. Petersburg City Court dated November 3, 2011 N 33-16437/2011; Appeal rulings of the Volgograd Regional Court dated 03/15/2012 N 33-2387/2012; Moscow City Court dated 08/06/2012 N 11-16329; Yaroslavl Regional Court dated 07/05/2012 N 33-3460; Pskov Regional Court dated 05/15/2012 N 33-749/2012).

Opposite decisions are rare (Appeal ruling of the Court of the Jewish Autonomous Region dated July 27, 2012 N 33-366/2012; Cassation ruling of the Bryansk Regional Court dated February 24, 2011 N 33-507/11). Moreover, sometimes it is possible to recover excess payments from the employee as material damage (Cassation ruling of the Supreme Court of the Republic of Tatarstan dated October 24, 2011 N 33-12920/11).

If we are not talking about excessive payments to an employee within the framework of an employment relationship, but about his debt on other grounds, then, of course, there is the possibility of collecting it from the employee. For example, if:

(or) the employee caused material damage to the company (in particular, he did not return the property entrusted to him, work clothes upon dismissal, overused his work Internet traffic for personal needs, damaged the company’s property) (Articles 248, 392 of the Labor Code of the Russian Federation). Moreover, if the amount of damage does not exceed the employee’s average monthly earnings, then it can be withheld from his salary without his consent (Article 248 of the Labor Code of the Russian Federation);

Taxi on a business trip Weekend on a business trip

28.08.2019

Sometimes when paying for labor, an accountant may make a mistake and underpay or overpay the salary.

In the first case, you can always make an additional payment.

But the overpaid amount can only be recovered in a limited amount.

The law also introduces restrictions on the possibility of deduction depending on the reason for which the overpayment was made.

What to do if an employee is overpaid?

In practice, overpayment of wages can be made for a number of reasons.

If the accountant allowed it, there are three options for getting out of the situation:

  1. Talk to the employee and ask to voluntarily deposit the overpaid amount into the company’s cash desk. This method is especially rational when the payment has just been made and the money has not yet been spent.
  2. Make a deduction of the overpaid amount in writing. You can set certain amounts of deductions for a specified period, but not more than 20% of the monthly salary.
  3. File a claim with the court in order to forcefully recover the excessively overpaid amount. This option is used if the employee does not want to return the excess amounts and has not written consent to the deduction.

A copy of the document is sent to the employee for review. After this, the employee deposits the excess amount into the company’s cash desk, agrees to withhold it, or the employer files a lawsuit.

Is it possible to deduct the amount of overpayment from the employee’s salary?

The legislator is quite strict regarding the issue of collecting amounts overpaid to the employee.

It's fast and free!

Anyone can make a mistake, and an accountant is no exception. What to do if, by mistake of an accountant, an employee was paid more wages than expected? Can it be recovered from the employee? In this article we will figure out how to return an overpayment of wages due to the fault of an accountant.

Procedure for deducting overpayment

First, you need to determine whether it is possible to withhold overpaid money from the employee. You can withhold money from an employee in the following situations (137 Labor Code of the Russian Federation):

  • The employee did not work out the funds previously issued to the employee or did not return them. An example is failure to provide a report on a business trip or for accountable money. Or the employee was paid an advance, which he did not work off. In some cases, it is also possible to withhold vacation pay, for example, when the employee’s vacation was provided in advance and the employee resigns. It is important to remember that vacation pay cannot be withheld if an employee quits due to layoffs or conscription into the army;
  • The employee was overpaid due to an accounting error. Or, due to an accounting error, the employee received a large amount of vacation pay or benefits.

Accountant mistakes

Counting errors Countless mistakes
Incorrect initial data was entered into the accounting program, for example, salary, date of employment, date of dismissal, percentage for calculating bonuses, etc.;

The accounting program crashed, resulting in wages being calculated incorrectly;

When calculating wages, large indicators were taken into account regarding the volume of work performed

 During one pay period, the salary was transferred twice;

The employee’s salary was transferred to the card, and he received it at the cash desk;

The employee was provided with a personal income tax deduction without justification;

When calculating the average salary, excluded payments were taken into account;

An incorrect algorithm was entered into the program to calculate benefits or sick leave;

When calculating benefits, the employee's insurance length was incorrectly calculated;

The salary was transferred to an employee who quit last month;

At the direction of the labor inspectorate, the employee’s salary was accrued, and then the court declared the order illegal

Procedure for reimbursement of overpayment

Depending on the situation in which the overpayment arose, the algorithm for its compensation will vary:

  1. The employee received a payment in an amount greater than what was due due to his own fraud (for example, the submitted documents contained deliberately false data) or the overpayment arose due to the fact that the employee did not report the advance payment or did not work it out. In this case, you first need to determine whether the employee agrees to the deduction, and also find out whether more than one month has passed from the date the overpayment was established. If the employee does not agree to withhold the overpayment, the employer only has the right to go to court. If the employee gives his consent, then the overpayment must be withheld from his salary. In this case, it is necessary to observe the rule of 20% withholding, that is, no more than 20% can be withheld from wages at a time (138 Labor Code of the Russian Federation).
  2. The overpayment occurred as a result of an accounting error. In this case, it is necessary to find out whether the accounting error is counting. If this is the case, then the overpayment is withheld from the employee’s salary, but not more than 20% of the salary at a time. If the error is uncountable, then the employer can withhold the overpayment only if the employee does it himself.

Evidence of a counting error

Conditions for withholding overpayments

In order to withhold an overpayment from an employee’s salary, the following conditions must be met:

  • The employee agrees to the retention;
  • At least one month must pass from the date that was set for the return of the advance or for repaying the debt.

Both conditions must be met simultaneously. If at least one of them is not fulfilled, the money can only be recovered in court. You will also need to go to court if the employee provided false information, or if some information affecting the salary was hidden.

How to return an overpayment of wages due to the fault of an accountant

What to do if an employee quits

The employer can deduct the overpayment only from the employee’s salary (137 Labor Code of the Russian Federation). However, if the employee has already quit, this cannot be done. If the employee does not want to voluntarily return the overpayment, the employer has the right to go to court. In this case, it is necessary to prepare evidence that the error due to which the overpayment was transferred was countable.

Adjustment of accounting, personal income tax and insurance premiums

If an error occurs in the payment of wages, you will need to recalculate personal income tax, contributions, and also correct accounting records. The postings will be as follows:

Business transaction Wiring
D TO
An advance was paid to the employee 70 51
The overpaid amount was reversed 20 70
The employee is paid a salary 20 70
Insurance premiums paid on wages 20 69
Basic salary paid minus withholding amounts 70 51
Personal income tax withheld 70 68

You can recover overpaid wages from an employee if:

  • the overpayment occurred as a result of a counting error. In this case, a counting error is understood as an arithmetic error, that is, an error made during arithmetic calculations (letter of Rostrud dated October 1, 2012 No. 1286-6-1, ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17) ;
  • the employee has been proven guilty of failure to comply with labor standards or idle time (these circumstances must be established by the labor dispute commission or the court);
  • the error was caused by the unlawful actions of the employee himself. For example, if he submitted incorrect documents to the accounting department for standard tax deductions (this circumstance must be confirmed by the court).

Such rules are established by Article 137 of the Labor Code of the Russian Federation.

When deductions cannot be made

In other cases, an erroneously issued salary cannot be withheld from an employee - he can reimburse it only at his own request (clause 3 of Article 1109 of the Civil Code of the Russian Federation). In particular, it is impossible to recover from an employee an overpaid salary if the overpayment occurred as a result of a technical error (ruling of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17).

Situation: is it possible to make deductions if an employee’s salary was mistakenly paid twice: by card and through the cash register?

Answer: no, you can't.

Offer the employee to return the excess money received. If he refuses, go to court.

The legislation allows withholding erroneously paid wages in the event of an accounting error by an accountant (Article 137 of the Labor Code of the Russian Federation). However, a counting error is understood as an error in calculating the amount of wages (i.e., an arithmetic error in calculations) (letter of Rostrud dated October 1, 2012 No. 1286-6-1, ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11 -17).

If during the same period an employee’s salary was issued twice, then such a counting error is not considered. After all, there were no distortions in determining the size of the salary.

In such a situation, the organization will have to prove in court that the actions of its employee were aimed at receiving amounts that were not due to him. The following may be used as evidence:

  • a certificate from the bank stating that the employee’s salary was received earlier than at the organization’s cash desk;
  • a statement (cash receipt) for receiving the same amount of salary at the cash desk with the employee’s signature;
  • documents confirming the amount of salary accrued to the employee (payslips, personal account).

Limit amount of deductions

You can deduct from an employee’s monthly salary no more than 20 percent of the amount due to him for payment (Article 138 of the Labor Code of the Russian Federation).

Documenting

The head of the organization must issue an order on the recovery of overpaid wages (letter of Rostrud dated August 9, 2007 No. 3044-6-0). The order must be issued no later than one month from the date of expiration of the period established for the employee to return the overpayment. If such a period was not set for the employee, the order must be issued no later than a month after the discovery of the excessive payment of wages. Withholding is possible only if the employee does not dispute the fact and amount of the overpayment. This conclusion follows from Article 137 of the Labor Code of the Russian Federation. In addition, to avoid disputes with the labor inspectorate, draw up a memorandum justifying the reason for withholding the overpayment.

Accounting

If in the current period an overpayment to an employee arose due to the erroneous accrual of his salary in a larger amount, then in accounting, reflect the adjustment of the excessively accrued amounts by posting:

Debit 20 (23, 26, 29...) Credit 70

- over-accrued wages were reversed.

Write off the overpayment of wages to settlements with personnel for other transactions:

- overpaid wages are written off for settlements with personnel for other operations.

Similar entries are made if a production bonus (related to labor achievements) is erroneously accrued.

An example of withholding from an employee an erroneously paid salary

In mid-May, an accountant at Alpha LLC discovered that a counting error had been made in calculating salaries for April, due to which the organization’s manager A.S. Kondratyev was accrued an excess amount of 10,100 rubles.

The organization applies a general taxation system and pays contributions for insurance against accidents and occupational diseases at a rate of 0.2 percent. Insurance premiums are calculated at general rates. The amount of taxable payments in favor of Kondratyev has not exceeded the contribution limit since the beginning of the year.

Kondratiev’s monthly salary is 27,000 rubles. Salaries are paid on the last day of the month. The employee does not have children, so the corresponding standard tax deduction is not provided to him.

The maximum amount that can be withheld from a monthly salary is:
(RUB 27,000 - RUB 27,000 × 13%) × 20% = RUB 4,698

The amount of overpaid salary to Kondratiev is equal to:
10,100 rub. - 10,100 rub. × 13% = 8787 rub.

The Alpha accountant made the following entries in the accounting.

In May:

Debit 26 Credit 70
- 10,100 rub. - Kondratyev’s overcharged salary was reversed;


- 1313 rub. (RUB 10,100 × 13%) - excessively withheld personal income tax from the amounts collected was reversed;

Debit 26 Credit 69 subaccount “Settlements with the Social Insurance Fund”
- 293 rub. (RUB 10,100 × 2.9%) - over-accrued contributions to the Social Insurance Fund of Russia were reversed;

Debit 26 Credit 69 subaccount “Settlements with Pension Fund”
- 2222 rub. (RUB 10,100 × 22%) - excessively accrued pension contributions were reversed;

Debit 26 Credit 69 subaccount “Settlements with FFOMS”
- 515 rub. (RUB 10,100 × 5.1%) - over-accrued contributions to the Federal Compulsory Medical Insurance Fund of Russia were reversed;

Debit 26 Credit 69 subaccount “Settlements with the Social Insurance Fund for contributions to insurance against accidents and occupational diseases”
- 20 rub. (RUB 10,100 × 0.2%) - excessively accrued premiums for insurance against accidents and occupational diseases were reversed;

Debit 73 subaccount “Overpaid wages” Credit 70
- 8787 rub. - overpaid wages are written off for settlements with personnel for other operations;

Debit 26 Credit 70
- 27,000 rub. - Kondratiev’s salary for May was accrued;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 3510 rub. (RUB 27,000 × 13%) - personal income tax was withheld from Kondratiev’s salary for May;


- 4698 rub. - part of the overpaid salary for April was withheld from Kondratiev’s salary for May;

Debit 70 Credit 50
- 18,792 rub. (27,000 rubles - 3510 rubles - 4698 rubles) - Kondratiev’s salary for May was paid minus deductions.

In June:

Debit 26 Credit 70
- 27,000 rub. - Kondratiev’s salary for June was accrued;

Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 3510 rub. (RUB 27,000 × 13%) - personal income tax was withheld from Kondratiev’s salary for June;

Debit 70 Credit 73 subaccount “Overpaid wages”
- 4089 rub. (8787 rubles - 4698 rubles) - part of the overpaid salary for April was withheld from Kondratiev’s salary for June;

Debit 70 Credit 50
- 19,401 rub. (27,000 rubles - 3,510 rubles - 4,089 rubles) - Kondratiev’s salary for June was paid minus deductions.

Situation: is it necessary to formalize the deduction of excessively accrued wages using an accounting certificate?

Answer: no, it is not necessary.

When deducting excessively accrued wages from an employee, an accounting certificate is not required.

All facts of economic life must be confirmed by primary documents (Part 1, Article 9 of the Law of December 6, 2011 No. 402-FZ). The head of the organization must issue an order to recover overpaid wages (Article 137 of the Labor Code of the Russian Federation). If this document contains all the required details of the primary accounting documentation, it will be the basis for accounting records. Mandatory details of primary documents are listed in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

Recalculation of taxes

The answer to this question depends on the reason for the excess payment.

If the excessive payment of wages is not related to a counting error, then do not recalculate taxes and do not submit updated declarations. Do this if:

  • the employee did not comply with labor standards or was idle (these circumstances must be established by the labor dispute commission or the court);
  • the error was caused by the unlawful actions of the employee himself. For example, if he submitted incorrect documents to the accounting department for standard tax deductions (this circumstance must be confirmed by the court).

In these cases, reducing an employee's earnings for excess payments is not a correction of the accountant's error, which requires adjustment of the updated declarations. This is one of the deductions at the initiative of the administration, which the organization made in due time (Article 137 of the Labor Code of the Russian Federation). Include the amount of payments to the employee in the month of adjustment in the calculation of salary taxes and contributions, taking into account deductions.

If an excessive payment of wages is associated with a counting error in previous reporting (tax) periods, the tax base for previous periods must be adjusted (Article 54 of the Tax Code of the Russian Federation). Do the same if an employee voluntarily reimburses the organization for overpaid wages. Since in the case under consideration, by the time the error is discovered, income tax reporting has already been submitted, submit updated declarations to the inspectorate, since due to excessive payment of wages for this tax, an arrear is formed (clause 1 of Article 81 of the Tax Code of the Russian Federation). For personal income tax, as a result of correcting the error, an overpayment will occur. If a recalculation is made for previous tax periods when Form 2-NDFL has already been submitted, you must submit it to the inspectorate again.

With regard to contributions to compulsory pension (social, medical) insurance, the following must be taken into account. If in any reporting period wages were accrued in excess, then there is no need to adjust the taxable base for contributions for this period. This is explained by the fact that the base for calculating contributions is formed on the date of calculation of payments (Part 1 of Article 11 of the Law of July 24, 2009 No. 212-FZ). Therefore, there are no grounds for adjusting the base for the reporting period in which the salary was excessively accrued. Therefore, it is not required to provide an updated calculation of accrued and paid insurance premiums for previous periods. Similar clarifications are contained in the letter of the Ministry of Health and Social Development of Russia dated May 28, 2010 No. 1376-19.

An example of recalculating tax liabilities when withholding overpaid wages from an employee. The excess payment of wages occurred due to a counting error by an accountant in the previous reporting (tax) period. The organization applies a general taxation system

In mid-August, the accountant of Alpha LLC discovered that when calculating salaries for May, a counting error was made, due to which the manager of the organization A.S. Kondratyev was accrued an excess amount of 10,100 rubles. The organization pays insurance premiums for compulsory pension (social, medical) insurance at general rates. The amount of taxable payments in favor of Kondratyev has not exceeded the contribution limit since the beginning of the year.

In August, Alpha's accountant recalculated taxes on the amount of overpaid wages. For May the following were overcharged:

  • pension contributions - 2222 rubles. (RUB 10,100 × 22%);
  • contributions to the Social Insurance Fund of Russia - 293 rubles. (RUB 10,100 × 2.9%);
  • contributions to the Federal Compulsory Medical Insurance Fund of Russia - 515 rubles. (RUB 10,100 × 5.1%);
  • contributions for insurance against accidents and occupational diseases - 20 rubles. (RUB 10,100 × 0.2%).

Personal income tax was also withheld excessively in the amount of 1,313 rubles. (RUB 10,100 × 13%).

The reporting period for income tax in Alpha is a quarter. The organization uses the accrual method. Based on the results of the first half of the year, the advance payment for income tax was calculated as an additional payment. Therefore, due to a calculation error when paying wages for income tax, arrears arose for the first half of the year. The amount of arrears amounted to 2630 rubles. ((RUB 10,100 + RUB 2,222 + RUB 293 + RUB 515 + RUB 20) × 20%).

Alpha transferred to the budget income tax (RUB 2,630) and penalties for each day of late payment.

If deduction cannot be made

If it is impossible to withhold or collect an erroneously issued salary from an employee, then it is recognized as a debt that is unrealistic for collection. Amount of bad receivables for overpaid wages:

  • write off against the reserve for doubtful debts (if it was created);
  • attribute it to the financial result of the organization’s activities, including it in other expenses (clause 11, 14.3 of PBU 10/99) (if the reserve was not created).

Reflect the write-off of salary arrears with the following entries:

Debit 76 Credit 73

- overpaid wages are written off;

Debit 91-2 (63) Credit 76

- bad receivables are written off.

ON THE. Matsepuro, lawyer

What amounts overpaid to an employee can be withheld from his salary?

Deductions from wages can be different: at the request of the employee himself, according to executive documents, or by order of the employer. The latter, in turn, can occur in the case of:

  • <или>the employee causing material damage to the employer;
  • <или>payments to an employee of excess amounts within the framework of an employment relationship (hereinafter referred to as excess payments) Art. 137 Labor Code of the Russian Federation.

The procedure for withholding excess payments differs from the procedure for withholding amounts of damages. Let's see what constitutes excess payments, how they can be withheld from an employee, and what to do if this fails.

Types of excess payments

From salaries Art. 129 Labor Code of the Russian Federation the employee is allowed to be detained Art. 137 Labor Code of the Russian Federation:

  • vacation pay for unworked vacation days. Such debt may arise if an employee is dismissed before the end of the working year for which he has already received annual paid leave. You can deduct the employee's debt from the “severance” payments due to him. However, upon dismissal for some reasons, overpaid vacation pay cannot be withheld. Art. 137 Labor Code of the Russian Federation. For example, upon dismissal:

Due to a reduction in staff or number of employees in clause 2 art. 81 Labor Code of the Russian Federation;

The employee’s refusal to transfer to another job, which is necessary for him according to a medical certificate, or the employer’s lack of appropriate work clause 8 art. 77 Labor Code of the Russian Federation;

Conscription for military service clause 1 art. 83 Labor Code of the Russian Federation;

Reinstatement of an employee who previously performed this work for clause 2 art. 83 Labor Code of the Russian Federation;

  • unearned salary advances. This debt may arise, for example, when an employee was paid an advance payment of wages for that month at the beginning of the month, and the employee, without having worked it, went on vacation at his own expense or on sick leave before the end of the month;
  • unspent and unreturned accountable amounts, including those issued when sent on a business trip Letter of Rostrud dated March 11, 2009 No. 1144-TZ;
  • payments for non-compliance with labor standards or simply e Articles 155, 157 of the Labor Code of the Russian Federation. Such a debt will arise if you pay an employee for downtime or shortcomings on the basis that they occurred through your fault or for reasons beyond the control of both parties, and then it turns out that the employee was to blame. In this case, excess payments can be withheld only after you go to court and the court establishes the employee’s fault for idle time or poor performance. Determination of the Moscow Regional Court dated December 15, 2011 No. 33-25895;
  • amounts overpaid due to an accounting error. Moreover, this is not necessarily a salary. This also includes any amounts erroneously paid to an employee as part of or in connection with the employment relationship. Rostrud specialists also think the same.

FROM AUTHENTIC SOURCES

Deputy Head of the Federal Service for Labor and Employment

“According to Art. 137 of the Labor Code of the Russian Federation, the employer may withhold from the employee’s salary (in compliance with the procedure provided for in this article) the debt of this employee in the form of amounts overpaid to him due to accounting errors. The range of these amounts is not limited by this article. Therefore, it is possible to deduct from the salary any payments and compensations overpaid to the employee due to a counting error, provided for by labor legislation, local regulations of the organization, collective or labor agreement, for example, benefits, financial assistance, payment for travel to the place of training, compensation for the use of the employee’s personal property, insurance provision of insurance against industrial accidents and occupational diseases, etc.

Deductions can only be made from wages. According to Art. 129 of the Labor Code of the Russian Federation, wages are remuneration for work (salary, official salary, tariff rate), as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and incentive allowances, bonuses and other incentive payments).”

There is no definition of a counting error in the Labor Code. The courts and Rostrud believe that only arithmetic errors in calculations are countable, that is, errors made as a result of incorrect application of the rules of mathematics and Letter of Rostrud dated 01.10.2012 No. 1286-6-1. Therefore, courts, as a rule, do not recognize the following errors as counting:

  • the same amount was transferred twice due to a technical error Determination of the Supreme Court dated January 20, 2012 No. 59-B 11-17;
  • When calculating, previously paid amounts are not taken into account. Determination of the Sverdlovsk Regional Court dated February 16, 2012 No. 33-2365/2012; Cassation ruling of the Krasnodar Regional Court dated February 14, 2012 No. 33-3340/12;
  • Incorrect initial data were used in the calculation (for example, the wrong tariff or coefficient Appeal ruling of the Oryol Regional Court dated June 20, 2012 No. 33-1068, not the same number of days Cassation ruling of the Khabarovsk Regional Court dated 02/08/2012 No. 33-847/2012);
  • the salary in the program was doubled due to an error in the calculation algorithm Appeal ruling of the Bryansk Regional Court dated 05/03/2012 No. 33-1077/12;
  • When calculating, the norms of the local regulatory act of the organization were incorrectly applied Appeal ruling of the Moscow City Court dated July 16, 2012 No. 11-13827/12.
For information on what to do if you overpaid an employee's benefits, see:

Courts reach other conclusions extremely rarely. For example, the Samara Regional Court indicated that counting errors include not only arithmetic errors, but also failures in software and Determination of the Samara Regional Court dated January 18, 2012 No. 33-302/2012.

WE WARN THE MANAGER

If the employee was overpaid as a result of an uncountable error and he refused to return these amounts voluntarily, it will be possible to recover them from him only in court as unjust enrichment Art. 1102, paragraph 3 of Art. 1109 Civil Code of the Russian Federation.

And the Rostov Regional Court, reviewing a case in which “severance” payments were transferred to a dismissed employee by mistake, came to the conclusion that there was a counting error. Since the total amount of transfers exceeded the amounts accrued in favor of the employee Cassation ruling of the Rostov Regional Court dated September 12, 2011 No. 33-12413.

The fact that a counting error was made when calculating payments in favor of the employee must be documented. For example, an accountant may write a memo addressed to the manager. Or let a specially created commission from among the company’s employees draw up a report on the discovery of a counting error.

Procedure for withholding excess payments

It varies depending on what amounts you overpaid the employee.

Deduction of vacation pay for unworked vacation days

Everything is simple here. The employee's consent is not required. You just need to calculate the overpaid vacation pay, issue an order (instruction) on withholding in any form, and familiarize the employee with it against signature Articles 22, 137 of the Labor Code of the Russian Federation. And then withhold the debt from the “severance” payments. But the maximum that can be deducted is 20% of the amounts due to the employee (after withholding personal income tax, because the amount of tax is not due to the employee), if this is the only deduction Art. 138 Labor Code of the Russian Federation;.

Also, do not forget to give the employee a pay slip indicating the type and amount of deduction. Art. 136 Labor Code of the Russian Federation.

Withholding of other excess payments

They can be deducted from the employee’s salary only if the following conditions are met: Art. 137 Labor Code of the Russian Federation.

CONDITION 1. The period established for the return of excess payments has expired

The employee must return any excess payments within the following terms:

  • unspent unspent amounts clause 4.4 of the Regulations, approved. Central Bank 10/12/2011 No. 373-P - on the next working day after the expiration of the period for which money was issued to purchase something, or on the day of returning to work after a business trip or after illness. And if the manager sets a deadline for making final payments on approved advance reports, then - within this period;
  • payments for failure to comply with labor standards or idle time if the court establishes the employee’s guilt - on the day the court decision enters into force;
  • amounts overpaid due to an accounting error and unpaid salary advances- within the period established in the company’s local regulations. If it is not established, then the employee should be given (sent by mail) a notice in which he must indicate what debt has arisen, in what amount and within what period it must be repaid. You set the deadline at your discretion. For example, you can issue a notification like this:

Limited Liability Company "Profile"

Ref. No. 87
12.11.2012

Sales Manager
Ivanova N.A.

Notification

Dear Natalya Alexandrovna, we inform you that on November 09, 2012, as a result of a counting error, vacation pay in the amount of 20,689 (Twenty thousand six hundred eighty-nine) rubles was excessively transferred to your salary card. We ask you to return this amount to the cashier or to the bank account of Profile LLC before November 20, 2012, or agree to have it deducted from your salary.

CONDITION 2. The employee’s consent to withholding has been obtained

The employer has the right to decide to withhold excess payments from the employee’s salary only if the employee does not dispute the grounds and amount of the withholding Art. 137 Labor Code of the Russian Federation.

From this we can conclude that it is enough to notify the employee of the upcoming deduction, assigning him a deadline for submitting objections. And if no objections are received from him within this period, then you can safely issue an order (instruction) to withhold.

But no. According to Rostrud, expressed in 2007, and the courts, this is not enough, and as a sign of the absence of objections on the part of the employee, it is necessary to obtain written consent from him to withhold Letter of Rostrud dated 08/09/2007 No. 3044-6-0; Cassation rulings of the Supreme Court of the Udmurt Republic dated August 22, 2011 No. 33-2856, Supreme Court of the Republic of Tatarstan dated March 14, 2011 No. 33-2570/2011. Rostrud specialists still adhere to the same opinion.

FROM AUTHENTIC SOURCES

“When deducting from an employee’s salary the provisions provided for in Art. 137 of the Labor Code of the Russian Federation (with the exception of vacation pay for unworked vacation days) written consent should be obtained from the employee. This is confirmed by judicial practice.”

Rostrud

An employee can formalize his consent to retention as follows.

To the Director of Profile LLC
V.E. Petrov
from the sales manager
ON THE. Ivanova

Statement

I hereby confirm my consent to deduct, in accordance with the procedure established by law, from my salary the excess vacation pay transferred to me on 09.11.2012 as a result of a calculation error in the amount of 20,689 (Twenty thousand six hundred eighty-nine) rubles.

ON THE. Ivanova

CONDITION 3. The withholding order is issued in a timely manner.

An order (instruction) on withholding must be issued no later than a month from the date of expiration of the period for the return of excess payments. And you can directly withhold money from the employee’s salary later Art. 137 Labor Code of the Russian Federation; Cassation ruling of the Supreme Court of the Udmurt Republic dated October 3, 2011 No. 33-3519/11, that is, when paying wages to an employee. Moreover, the withholding, taking into account the restrictions on its amount, can last for several months.

In the order, indicate the basis and amount of the withholding. And introduce it to the employee against signature Art. 22 Labor Code of the Russian Federation.

CONDITION 4. The amount of deductions for each payment does not exceed 20%

For each salary payment (that is, from amounts after deducting personal income tax), you can withhold no more than 20% Art. 138 Labor Code of the Russian Federation. Do not forget to indicate the basis and amount of deduction on the pay slip issued to the employee. Art. 136 Labor Code of the Russian Federation.

Well, if the employee agrees to have more than 20% withheld from him, then you can deduct from his salary any amount specified by him in his written statement. Indeed, in this case, the debt is repaid by the employee voluntarily, and not by order of the employer. Therefore, restrictions on the amount of deductions do not apply. Articles 130, 138 of the Labor Code of the Russian Federation. And there is no need to issue an order for such deduction; just one application from the employee is enough.

To the Director of Profile LLC
V.E. Petrov
from the sales manager
ON THE. Ivanova

Statement

I ask you to withhold the entire amount of vacation pay in the amount of 20,689 (Twenty thousand six hundred eighty-nine) rubles transferred to me on November 09, 2012 as a result of a calculation error from the salary due to me for November 2012.

ON THE. Ivanova

CONDITION 5. The order of deductions is observed

First of all, as you know, personal income tax must be withheld from your salary Letter of the Ministry of Health and Social Development dated November 16, 2011 No. 22-2-4852.

From the remaining amount, you withhold the employee’s debt under enforcement documents (writs of execution, court orders, etc.) Art. 138 Labor Code of the Russian Federation.

And only if you do not have executive documents in relation to the employee or the deductions for them amounted to less than 20% of the employee’s salary, you can deduct from it his debt to your company, of course, subject to the total amount of all deductions - no more than 20% of the salary.

Observe all of the above conditions when holding. Indeed, if any of them is not observed, the employee may, through the court, declare the retention illegal. And then the amounts withheld from him will be collected back from your organization - in his favor